Socialist Workers Party v. Attorney General of US
| Decision Date | 29 March 1974 |
| Docket Number | No. 73 Civ. 3160.,73 Civ. 3160. |
| Citation | 375 F. Supp. 318 |
| Parties | SOCIALIST WORKERS PARTY et al., Plaintiffs, v. ATTORNEY GENERAL OF the UNITED STATES et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Leonard B. Boudin, Rabinowitz, Boudin & Standard, Herbert Jordan, New York City, for plaintiffs.
John J. Wilson, David G. Bress, Washington, D. C., for defendants.
This is an action brought by the Socialist Workers Party ("SWP"), the Young Socialist Alliance ("YSA") and certain individuals, on their own behalf, and allegedly representing a class of approximately 100,000 persons consisting of members of the SWP and the YSA. The action is brought under the Constitution and various federal statutes, alleging that defendants conspired to deprive plaintiffs and their class of rights to participate in the electoral process and that defendants are responsible for illegal burglary, mail tampering and other wrongful activities.
The defendants named in the complaint include President Nixon and certain former officials and employees of the Government, as follows:
Robert C. Mardian John Mitchell John W. Dean, III H. R. Haldeman John D. Ehrlichman Tom Charles Huston Jacob Nogi In addition, the complaint names the following defendants by their official titles:
Defendants Haldeman, Ehrlichman and Mardian move for dismissal of the action on the ground of lack of personal jurisdiction. The motions are granted, without prejudice to the making of a later motion by plaintiffs under F.R.Civ.P. 21 to join these three parties as defendants when and if the record satisfactorily demonstrates a basis for jurisdiction.1
According to the complaint, these three defendants occupied the following posts in the Government:
Although plaintiffs do not refer to this in the complaint, their memorandum in opposition to Mardian's motion asserts that from March 1972 until November 10, 1972, Mardian was an official in the Committee to Re-elect the President.
Admittedly Haldeman, Ehrlichman and Mardian do not reside in New York and were not served in this State. They now reside in the states of California, Washington and Arizona respectively. Haldeman was served on August 2, 1973 in Washington, D. C. Ehrlichman was served on July 31, 1973 in Great Falls, Virginia. Mardian was served on September 17, 1973 in Phoenix, Arizona.
The only arguable basis for jurisdiction over these three defendants is F.R. Civ.P. 4(e), which authorizes a federal court to make use of state law for service on non-residents. The New York statute relied upon is CPLR § 302(a)(2), McKinney's Consol.Laws, c. 8, which permits out-of-state service on a non-resident who has committed "a tortious act within the state".
The complaint alleges that since 1948, when the so-called Attorney General's List was published naming the SWP as a subversive organization, various officers of the Government have agreed upon a campaign of harassment against this political party (pars. 33, 37-38). The complaint further alleges that during the months of July through November 1970, defendants Haldeman, Ehrlichman and Mardian, together with other defendants, agreed to intensify governmental harassment of the SWP by use of warrantless electronic surveillance, mail covers and burglaries (pars. 34-35). In paragraph 36 of the complaint, Haldeman, Ehrlichman and Mardian are joined in an omnibus charge, alleging that these defendants caused the events described in 38 separately numbered paragraphs in the complaint.
It should be pointed out that none of the acts alleged in these 38 paragraphs of the complaint are said to have been actually performed by Haldeman, Ehrlichman or Mardian. The allegations are of burglaries, mail covers and other forms of alleged harassment carried out by employees and agents of the FBI, the Civil Service Commission, the United States Army, the Selective Service System, the Board of Parole, the Postmaster General, the Treasury Department, the CIA, the Department of Defense and the National Security Agency. It is alleged that defendants Haldeman, Ehrlichman, Mardian and other individual defendants "knew that some or all of these events" were about to occur (par. 75).
While the 38 paragraphs contain certain broad allegations of illegal activity in New York, Los Angeles, Seattle and other cities, there is only one allegation of a specific act occurring in New York. It is alleged that on or about May 24, 1973 "unidentified persons" broke into the apartment of plaintiff Norman Oliver in Brooklyn and rifled his files pertaining to SWP business and his then campaign for Mayor of New York City on the SWP ticket (par. 68). The complaint alleges on information and belief that the persons who planned and participated in this and certain other alleged burglaries were agents of the FBI, the Treasury Department, the CIA, the Department of Defense, the National Security Agency, or agents of all of them (par. 69).
Each of the moving defendants has filed a brief affidavit denying that he ever participated in or authorized any illegal, tortious or unconstitutional action with respect to the SWP or the YSA or any of the individual plaintiffs in this action. Each has denied committing any tortious act within New York either personally or through an agent.
Plaintiffs have responded to these motions by referring to three activities allegedly carried on by Government agents in New York. Plaintiffs claim that such activities were performed pursuant to an alleged conspiracy of which defendants Haldeman, Ehrlichman and Mardian were members, and that on this basis these defendants can be said to have committed tortious acts within the State of New York.
First, plaintiffs refer to the alleged burglary of plaintiff Oliver's apartment mentioned in the complaint. Second, plaintiffs refer to a mail cover carried out by the FBI respecting the headquarters of the SWP in New York City. Plaintiffs originally learned about this mail cover from certain litigation in the Federal District Court in New Jersey, Paton v. LaPrade (Civ.Action No. 1091-73), which deals with an incident of mail surveillance occurring in early 1973. A document produced in discovery in the present action shows that the Acting Director of the FBI ordered this mail cover on January 11, 1973. The third type of activity relied on by plaintiffs is a "Disruption Program" by the FBI against the SWP. Plaintiffs have obtained a memorandum dated April 28, 1971 from the Director of the FBI to the Albany office of the FBI, directing that the Disruption Program for the SWP and other counterintelligence programs for other organizations be discontinued immediately, but stating that recommendations for counterintelligence action in exceptional cases will be considered by the FBI in the future on an individual basis.
Plaintiffs naturally argue that the April 28, 1971 memorandum proves there was a Disruption Program carried out in New York against the SWP by the FBI prior to the time of the memorandum. Plaintiffs also assert that they "will present evidence that it operates even now" (Plaintiffs' Memorandum— Mardian Motion p. 2, n. 2). But plaintiffs have not cited on this motion any specific manifestations of the Disruption Program, unless the alleged mail cover and burglary of Oliver's apartment in 1973 are claimed to be such.
Plaintiffs are correct that under certain circumstances a person may be subjected to jurisdiction under CPLR § 302(a)(2) on the theory that his co-conspirator is carrying out activities in New York pursuant to the conspiracy. American Broadcasting Co. v. Hernreich, 40 A.D.2d 800, 338 N.Y.S.2d 146 (1st Dep't 1972) and Neilson v. Sal Martorano, Inc., 36 A.D.2d 625, 319 N. Y.S.2d 480 (2d Dep't 1971). But, in order for a plaintiff to subject an out-of-state defendant to jurisdiction in New York, it is necessary to do more than put forward an unsupported allegation. The plaintiff must come forward with some definite evidentiary facts to connect the defendant with transactions occurring in New York. LaMarr v. Klein, 35 A.D.2d 248, 315 N.Y.S.2d 695 (1st Dep't 1970). Although it is not necessary upon a jurisdictional motion for the plaintiff to finally prove the tortious act in question, our Court of Appeals has stated that, in order to establish "threshold jurisdiction", the plaintiff must establish "prima facie" the relevant facts under CPLR § 302. United States v. Montreal Trust Co., 358 F.2d 239 (2d Cir. 1966), cert. denied, 384 U. S. 919, 86 S.Ct. 1366, 16 L.Ed.2d 440 (1966).
Plaintiff's factual record on the present motions consists of the following:
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